The unified patent with unitary effect will replace the European Patent Convention (EPC), that ruled the implementation of the European patent and the intellectual property protection in Europe since its entry into force in 1973. The main objective of UPS is to ensure that a single patent application, a single set of fees and a single regulatory procedure are enough to obtain patent protection throughout Europe. A key element of the European unitary patent is that it will be granted by the European Patent Office (EPO), but it will also have unitary effect in all EU member states including Norway, Iceland, Liechtenstein.
EPO will examine the applications and determine whether patents should be granted on the basis of novelty, inventiveness and industrial applicability of the invention
Effects, procedures and costs of the EU unitary patent
Unitary patents do not replace the industrial property protection system existing at national level – UIBM in Italy – and the European level patent EPO. Indeed, they support both levels of protection by guaranteeing patents in 17 of the 25 EU Member States that have signed the agreement. 8 EU member countries, including Spain, have not done it yet. The European Patent is validated in the 39 contracting States of the EPC according to the list updated on October 1st, 2022 and in some States not adhering to the EPC, which however have established specific bilateral agreements.
The Unitary Patent, on the other hand, will have effect in the Member States of the EU, except in Spain, Croatia and Poland which do not yet participate in the EU Patent Package, nor in those States which are part of the EPC, but not Member States of the EU such as Great Britain, Switzerland, Norway, Turkey. For these countries, the only way to recognize a patent is to validate the European Patent according to the methods known so far.
In any case, the European Association of Patent Lawyers (EAPL) has defined the new European patent process as decisive for a truly unified patent system in Europe. The main features of the Patent with unitary effects in the EU are:
- Reduction of the duration of the unified patent from 20 to 15 years;
- Addition of a five-year grace period at the end of the patent term to allow patentees to apply for extensions to the unified patent with a lower fee and fewer requirements;
- Introduction of a single procedure to obtain the unified patent, simpler and less expensive than the current procedures for European patents;
- Moving from a unitary patent system to a “unified” patent system where the European patent will be granted by the EPO patent office, but will also have effect in all EU countries.
EU Member States where the Unified Patent will act as protection for intellectual property rights
The unitary patent will be issued by the European Patent Office (EPO) and will allow the payment of a single fee for the patent and renewal rights, so as to obtain patent protection in the 25 EU countries adhering, namely: Italy , France, Germany, the Netherlands, Belgium, Luxembourg, Poland, Malta, Cyprus, Greece, Sweden, Denmark, Finland, Estonia, Latvia, Lithuania, Czech Republic, Slovak Republic, Slovenia, Portugal, Austria, Romania, Bulgaria, Hungary, Ireland.
The only thing that is still missing is the addition of certain countries to the institution of the Unitary Patent Court. Hence why initially unitary patents granted by the EPO will not cover the territory of all 25 countries, but only of the 17 that have already signed the agreement for the establishment of the Unitary Patent Court, which you can find at the link here.
How to file for a patent in the EU. European unitary patent entry into force and transitional phase
The structure for the management of the Unitary Patent Court is still in its activation process. For this reason a transitional phase of application of the European unitary patent is foreseen from January 2023, pending that the rest of the 25 member countries follow up to the agreement. Meanwhile:
- From January 1st 2023, the transitional measures envisaged by the European Patent Office will be implemented, so as to meet the request for unitary effect or delay the granting of a European patent: https://www.epo.org/news-events/news/2022/20221206.html. https://www.epo.org/news-events/news/2022/20221219a.html
- From March 1st 2023, the sunrise period will begin to give users time to prepare for the digital signature authentication procedure, required to log in to the Unitary Patent Court Case Management System (CMS).
For more information on the entry into force of the patent with unitary effect in the EU from 2023, you can visit the dedicated page: https://www.unified-patent-court.org/en/news/adjustment-timeline-start-sunrise-period-1-march-2023
Procedures to obtain patent projection as envisaged by the European patent convention, pros and cons
The European Union is the world’s third largest economy, behind the United States and China. The EU’s gross domestic product (GDP) is worth 15,000 billion euros and represents a fifth of the world’s economic output. Of course, the importance of the EU for innovation goes far beyond these numbers. Inventions and innovations are a source of economic growth and prosperity. Inventions are at the basis of new products, services and businesses that create jobs and fresh value, hence why is the EU so important politically, economically and socially. Furthermore, in 2018 alone, almost 50% of patent applications worldwide have been deposited in the EU.
Advantages of the Unified European Patent
Within the current patent system of individual European countries it is not clear whether an application will be examined, when, and how much it will cost. Having a unified patent procedure for the entire EU offers several advantages:
- While the current system requires separate applications in each EU member state, a single patent application will be sufficient to protect an invention in all EU member states;
- Applicants will benefit from a single and more cost-effective examination procedure, whereas the current system has different procedures and requirements in each EU Member State;
- The unified European patent will be valid for 10 years, as per the current system;
- There will be a single set of rules, procedures and language requirements for obtaining a patent across the EU;
- The current system has different rules for each EU member state. There will be a higher degree of certainty for companies investing in research and development (R&D) as the new system will provide greater clarity and transparency in patent protection;
- The current system provides for a complex and uncertain method for establishing the validity of patents and calculating infringement damages. Companies and inventors will benefit from the transparency and clarity on the procedures and costs associated with obtaining and managing patents;
- Businesses will ensure their inventions a protection based on easily and quickly identifiable patents across the EU. This aspect will be particularly important for SMEs, which are often unaware of the benefits of patent protection and the difficulties they may encounter in obtaining patents;
- With a single patent valid in all EU member states, businesses will have a clearer way of identifying those patents essential to their products. It will be then easier for companies to protect the patent or defend themselves in the event of alleged infringement;
- Companies will benefit from more certain methods to ensure their products don’t infringe existing patents. This aspect will be crucial for companies that rely on the open competition in the single market to lower prices and provide better customer services.
How the unitary patent changes the European patent system. Costs and procedures
The new unified patent enforcement system will drastically reduce the cost and complexity of obtaining a valid patent in all EU Member States. In addition to that, the unified patent system will also provide greater certainty and clarity for companies and inventors who want to protect industrial property.
Application for a single patent valid in all EU Member States
The unitary patent protection system will be available for the following types of inventions:
- inventions applicable in all Member States;
- inventions applicable in a limited number of Member States;
- inventions applicable in all Member States but subject to additional requirements (e.g. the use of a special language).
The national patent system will be available for the following types of inventions:
- inventions applicable in a limited number of Member States;
- inventions applicable in a specific group of Member States.
The impact of the new patent system with unitary effect on EU innovation and economic growth
The European institutions, the Commission and the EU Parliament, have introduced the European Patent with unitary effect aiming at the significant impact it will have on the EU agenda on innovation. The new patent system is expected to increase patenting rates among SMEs in the EU. The current system is considered too complex and difficult to manage for companies operating in the single market. Furthermore, the new system will also increase the value of patents, as it will make them easier to apply for and obtain. A major impact is expected for the pharmaceutical and biotechnology sectors, which rely heavily on patents.
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